Karikadai Balu vs Balakrishna Iyer and Others

Somasundaram, J.—The first defendant in O.S. No. 255 of 1980 on the file of District Munsif''s Court, Madurai Taluk is the appellant in the

second appeal. The plaintiff and defendants 2 and 3 in the above mentioned suit are respondents in the second appeal. For the sake of

convenience the parties are referred to in this judgment by their nomenclature given in the suit.

2., The facts necessary for the disposal of the second appeal are as follows: The plaintiff filed this suit O.S. No. 255 of 1980 on the file of District

Munsif''s Court, Madurai Taluk for a permanent injunction restraining the first defendant, his men, and agents from interfering with the possession

and enjoyment of the suit property by the plaintiff and for directing the first defendant to deliver possession of the portion of the suit property

marked as GHLIH in the Commissioner''s plan and also the portions of the property over which he has put up a mutton stall and for a mandatory

injunction directing the first defendant to remove the that fence put up by him in the suit property. The suit was posted for hearing on 1-9-1980 and

on that day, 1st defendant did not appear and he was set ex parte. From 1-9-1980, the suit was adjourned to 5-9-1980. On 5-9-1980, the ex

parte evidence of P.W.1 was taken, Exhibits A-l, C-l and C-2 were marked and the trial court passed ex parte decree against the first defendant

The first defendant filed an application I.A.No. 635 of 1980 to set aside the ex pane decree dated 5-9-1980. On 12-11-1980, the trial Court

allowed I.A.No.635 of 1980 and the ex parte decree passed against the first defendant on 5-9-1980 was set aside. The first defendant thereafter

filed a written statement through his counsel. Subsequent to the filing of the written statement in the suit. Plaintiff also filed a reply statement. On the

basis of the pleadings of both the parties, the trial Court also framed issues. After framing issues, the suit was adjourned to 21-1-1981 to trial. On

21-1-1981 the first defendant did not appear before the Court, consequently he was set ex parte and on the same day the suit was decreed on the

basis of the ex parte evidence already recorded on 5-9-1980.

As against the ex parte decree dated 21-8-1981 without filing a petition to set aside the ex pane decree, the first defendant filed an appeal

A.S.No.247 of 1982 before the District Court, Madurai South. The lower appellate court dismissed the appeal and confirmed the judgment and

decree of the trial court. Aggrieved by the judgments of the courts below, the first defendant has filed the present appeal.,

Mr. K.Jayaraman, learned Counsel for the first defendant would contend that as per the provisions of Order 9, Rule 6(1)(a), C.P.C. read with

Order 9, Rule 7, C.P.C. ex parte order and an ex parte decree cannot be passed simultaneously on the same day. In other words, the learned

Counsel submitted that the trial Court in the present case after setting the first defendant ex parte on 21-1-1981 cannot immediately proceed to

pass the ex parte decree, on the basis of the evidence already on record on the same day itself. According to the learned Counsel for the first

defendant, when the first defendant was set ex parte on 21-1-1931, the trial court ought to have adjourned the suit to some other date giving an

opportunity to the first defendant to appear on the adjourned date and should pass the ex parte decree only on the adjourned date if the first

defendant failed to appear on the date also. There is no force in the contentions of the learned Counsel for the first defendant. Order 9, Rule 6,

C.P.C. comes under Chapter 9, which deals with appearance of parties and consequence of non-appearance Order 9, Rule 5 must be read along

with Order 9, Rules 1 to 5, C.P.C. Order 9, Rule 1, C.P.C. says that on the day fixed in the summons for the defendant to appear and answer, the

parties shall be in attendance at the Court in person or by their respective pleaders and the suit shall then be heard, unless the hearing is adjourned

to a future day fixed by the Court Order 9, Rule 2 provides for the dismissal of the suit, where summons has not been served in consequence of

plaintiffs failure to pay the court fee or postal charges (if any) chargeable for service of summons. Order 9, Rule 3says where neither party appears

when the suit is called on for hearing, the court may pass an order dismissing the suit. Order 9, Rule 5, provides for the dismissal of the suit where

the plaintiff, after summons returned unserved, fails for 3 months to apply for fresh summons. Order 9, Rule 6, C.P.C. runs as under

Procedure when only plaintiff appears: 1. Where the plaintiff appears and the defendant does not appear when the suit is called on for hearing, then

(a) When summons duly served; if it is proved that the summons were duly served, the Court may make an order that the suit should be heard ex

parte.

(b) When summons not duly served; If it is not proved that the summons was duly served, the Court shall direct a second summons to be issued

and served on the defendant;

(c) When summons served but not in due time: If it is proved that the summons was served on the defendant, but not in sufficient time to enable him

to appear and answer on the day fixed in the summons, the Court shall postpone the hearing of the suit to a future day to be fixed by the Court,

and shall direct notice of such day to be given to the defendant

Where it is owing to the plaintiffs default that the summons was not duly served or was served in insufficient time the Court shall order the

plaintiff to pay the costs occasioned by the postponement.

Order 9, Rule 6(1)(a) deals with a case when summons is duly served on the defendant. Order 9, Rule 6(1)(a) provides that if it is proved that

the summons were duly served, the court may make an order that the suit be heard ex parte. Order 9, Rule 7, C.P.C. provides that where the

court has adjourned the hearing of the suit ex parte, and the defendant, at or before such hearing appears and assigns good cause for his previous

non-appearance, he may, upon such terms as the court directs as to costs or otherwise, be heard in answer to the suit as if he had appeared on the

day fixed for his appearance. A reading of Order 9, Rule 6(1)(a) and Rule 7, C.P.C. shows that the Order 9, Rule 6(1)(a), C.P.C. will apply only

to the case of a defendant''s failure to appear on the first hearing date fixed in the summons and the said rule will not apply to the case of failure of

the defendant to appear on the adjourned date of hearing of the suit. The appearance referred to in Order 9, Rule 6, C.P.C. is an appearance in an

answer to a summons to appear and answer the claim on a day specified in the summons. The words ""when the suit is called on for hearing"" in

Order 9, Rule 6 refers to the first day''s hearing and not the adjourned day''s hearing. If the defendant had already appeared in answer to the

summons but fails to appear at the adjourned hearing, the case falls under Order 17, Rule 2, C.P.C. Order 17, Rule 2, C.P.C. runs as follows:

Procedure if parties fail to appear on day fixed. Where, on any day to which the hearing of the suit is adjourned, the parties or any of them fail to

appear, the court may proceed to dispose of the suit in one of the modes directed in that behalf by Order IX or make such other order as it thinks

fit

Order 9deals with the consequence of non-appearance of parties on the date of hearing fixed in summons, while Order 17, Rule 2, C.P.C.

deals with the consequence of non-appearance of the parties to appear on the adjourned date of hearing of the suit. Order 9, Rule 6, will not apply

to a case, where the defendant who has already appeared through counsel and filed written statement in the suit, but has failed to appear on the

adjourned date of hearing of the case. For such a case, only Order 17, Rule 2, C.P.C. will apply. The contention of the learned Counsel for the

first defendant that even on the adjourned dates, after the defendant entered appearance and filed written statement, if he is absent, he must be set

ex parte as provided in Order 9, Rule 6(1)(a), C.P.C. and that the suit must be adjourned to some other date and only on the adjourned date an

ex parte decree can be passed against the defendant if he is absent on that date also is untenable and not warranted by the provisions of Order 9,

Rule 6(1)(a), C.P.C. Admittedly, in the present case, the defendant was set ex parte on 1-9-1980 and the suit was adjourned to 5-9-1980. On 5-

9-1980 an ex parte decree was passed against the 1st defendant on the basis of the evidence of P.W.I and Exhibits A-1, C-1 and C-2. The first

defendant filed an application T.A. No. 635 of 1980 to set aside the ex parte decree dated 5-9-1980. The interlocutory application was allowed

and the ex parte decree was'' set aside. Thereafter after filing of the written statement by the first defendant and the reply statement by the plaintiff

and after framing of the issues, the suit was adjourned to 21-1-1981. As the defendant was absent on 21-1-1981, the trial court passed an ex

parte decree against the first defendant on the basis of the evidence already recorded on 5-9-1980. In these circumstances, the contentions of the

learned Counsel for the first defendant that the trial court erred in passing an ex parte decree on 21-8-1981 itself and that the trial court ought to

have set the defendant ex parte on 21-8-1981 and adjourned the suit to a later date and passed the ex parte decree only on the adjourned date if

he fails to appear on that date also, cannot be accepted. Equally, the contention of the learned Counsel for the first defendant that Order 9, Rule

6(1)(a), C.P.C. will apply to the facts of the present case cannot be countenanced. No other argument is advanced by the learned Counsel for the

first defendant in this second appeal. There is absolutely no merit in the second appeal and the same is liable to be dismissed. Accordingly, the

second appeal is dismissed, but in the circumstances of the case, there is no order as to costs.